Obama Admin Tells Court: Hobby Lobby Must Obey Mandate

Obama's administration told a federal court on Monday that Christian business Hobby Lobby must obey the HHS mandate, contained in the Affordable Care Act (Obamacare), which forces companies whose owners have a religious conscience (protected under the First Amendment) to pay for contraception for women.

The retail chain which runs more than 500 stores in 41 states field a lawsuit against the Obama administration's Health and Human Services (HHS) mandate back in September, becoming the first non-Roman Catholic business to do so.

The administration’s arguments in this case are shocking. Here’s what they are saying: once someone starts a “secular” business, he categorically loses any right to run that business in accordance with his conscience. The business owner simply leaves her First Amendment rights at home when she goes to work at the business she built. Kosher butchers around the country must be shocked to find that they now run “secular” businesses. On this view of the world, even a seller of Bibles is “secular.” Hobby Lobby’s affiliate, Mardel, sells Bibles and other Christian-themed material, but because it makes a profit the government has now declared it “secular.”

The administration’s position here — while astonishing — is actually consistent with its overall view of the place of religion in civil society. After all, this is the administration who argued in the Hosanna-Tabor case last year in the Supreme Court that the religion clauses of the First Amendment offered no special protection to a church’s right to choose its ministers — a position that the Court rejected 9-0. This is the administration which has taken to referring to “freedom of worship” instead of “freedom of religion” — suggesting that religious freedom consists in being free to engage in private rituals and prayers, but not in carrying your religious convictions into public life. And this is the administration who crafted a “religious employer” exemption to the HHS mandate so narrow that a Catholic charity does not qualify for conscience protection if it serves non-Catholic poor people.

As you point out, the administration is trying to justify its rigid stance against religious business owners by saying otherwise they would become a “law unto themselves,” and be able to do all sorts of nasty things to their employees — like force them to attend Bible studies, or fire them if they denied the divinity of Christ. Nonsense. Hobby Lobby isn’t arguing for the right to impose the Greens’ religion on employees, nor for the right to fire employees of different religions. There’s already a federal law that protects employees from religious discrimination and that’s a very good thing. This case is about something entirely different: it’s about stopping the government from coercing religious business owners. The government wants to fine the Greens if they do not violate their own faith by handing out free abortion drugs, and now it’s saying they don’t even have the right to complain in court about it.

Duncan went on to say that the Obama administration's arguments were shocking. He said they argued "once someone starts a “secular” business, he categorically loses any right to run that business in accordance with his conscience. The business owner simply leaves her First Amendment rights at home when she goes to work at the business she built."

The HHS mandate will hit, not only Hobby Lobby, but thousands of businesses across the country January 1, 2013. For Hobby Lobby, they face a choice of dropping their employees health insurance altogether, at which point they will be required to pay approximately $26 million a year in penalty taxes, or they continue their current plan in which they will be fined $1.3 million per day. Of course I suppose that businesses around the country could just refuse to comply at all and force the federal government's hand, and appeal to their state's representatives. After all, according to Michael F. Cannon, director of health policy studies at the CATO institute, states do have the ability to shut down this mess.

According to U.S. District Judge Joe Heaton he did not rule on Hobby Lobby's request for an injunction, but rather said, “This does raise a lot of new and different issues. There’s not a lot of guidance out there.”

While the Obama administration claims that there is an exemption in the statute, Mr. Duncan claims that is unacceptable. He says,

“The safe harbor’s protection is illusory. Even though the government won’t make religious colleges pay crippling fines this year, private lawsuits can still be brought, schools are at a competitive disadvantage for hiring and retaining faculty, and employees face the specter of battling chronic conditions without access to affordable care. This mandate puts these religious schools in an impossible position.”